[Federal Register Volume 78, Number 146 (Tuesday, July 30, 2013)]
[Rules and Regulations]
[Pages 45850-45863]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17822]
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DEPARTMENT OF ENERGY
Federal Energy Regulatory Commission
18 CFR Part 284
[Docket No. RM12-17-000; Order No. 781]
Revisions to Procedural Regulations Governing Transportation by
Intrastate Pipelines
AGENCY: Federal Energy Regulatory Commission, DOE.
ACTION: Final rule.
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SUMMARY: In this Final Rule, the Federal Energy Regulatory Commission
amends its regulations to provide optional notice procedures for
processing rate filings by those natural gas pipelines that fall under
the Commission's jurisdiction pursuant to the Natural Gas Policy Act of
1978 or the Natural Gas Act. The rule results in regulatory certainty
and a reduction of regulatory burdens.
DATES: This rule is effective September 30, 2013.
FOR FURTHER INFORMATION CONTACT:
David Tishman (Legal Information), Office of the General Counsel,
Federal Energy Regulatory Commission, 888 First Street NE., Washington,
DC 20426, (202) 502-8515, David.Tishman@ferc.gov.
James Sarikas (Technical Information), Office of Energy Market
Regulation, Federal Energy Regulatory Commission, 888 First Street NE.,
Washington, DC 20426, (202) 502-6831, James.Sarikas@ferc.gov.
SUPPLEMENTARY INFORMATION: The Final Rule generally adopts the
regulations proposed in the October 18, 2012, Notice of Proposed
Rulemaking, published November 6, 2012, at 77 FR 66568, but revises
that proposal in two respects. First, the Final Rule revises the
Commission's periodic rate review requirement policy to allow
intrastate pipelines with unchanged state-based rates to meet the
requirement by certifying that the state-approved rates continue to
satisfy the requirements of the Commission's regulations for using a
state-based rate. Second, the Final Rule extends the deadline for
interventions and initial comments to 21 days after the date of the
filing or such other date established by the Secretary of the
Commission. The Final Rule also makes technical corrections to the
proposed rules.
144 FERC ] 61,034
Final Rule
Table of Contents
Paragraph
Nos.
I. Background............................................... 2
A. The NOPR............................................. 9
B. Comments............................................. 15
II. Whether To Adopt Optional Notice Procedures............. 16
A. The NOPR............................................. 16
B. Comments............................................. 17
C. Commission Determination............................. 23
III. Time Periods Allowed To Intervene and Protest in a Sec. 30
284.123(g) Proceeding....................................
A. The NOPR............................................. 30
B. Comments............................................. 31
C. Commission Determination............................. 37
IV. Procedures for Resolving Contested Cases................ 41
A. The NOPR............................................. 41
B. Comments............................................. 42
C. Commission Determination............................. 44
V. Ex Parte Rules........................................... 45
A. The NOPR............................................. 45
B. Comments............................................. 46
C. Commission Determination............................. 47
VI. Market-Based Rates Which Must Be Revised to Cost-Based 48
Rates......................................................
A. Comments............................................. 48
B. Commission Determination............................. 49
VII. Periodic Rate Review................................... 50
A. The NOPR............................................. 50
B. Comments............................................. 52
C. Commission Determination............................. 56
[[Page 45851]]
VIII. Miscellaneous......................................... 65
A. Section 284.123(g)(8)................................ 65
1. The NOPR............................................. 65
2. Comments............................................. 66
3. Commission Determination............................. 68
B. Section 284.123(g)(4)................................ 70
1. The NOPR............................................. 70
2. Comments............................................. 71
3. Commission Determination............................. 72
C. Clarifications....................................... 73
IX. Information Collection Statement........................ 74
A. The NOPR............................................. 74
B. Comments............................................. 77
C. Commission Determination............................. 78
X. Environmental Analysis................................... 83
XI. Regulatory Flexibility Act.............................. 84
XII. Document Availability.................................. 86
XIII. Effective Date and Congressional Notification......... 89
Before Commissioners: Jon Wellinghoff, Chairman; Philip D. Moeller,
John R. Norris, Cheryl A. LaFleur, and Tony Clark.
(Issued July 18, 2013.)
1. In this Final Rule, the Commission revises its Part 284
regulations governing open access transportation service to include
optional notice procedures which intrastate pipelines may elect to use
when filing proposed rates or operating conditions pursuant to Sec.
284.123 of the Commission's regulations.\1\ The revised procedures are
intended to result in regulatory certainty and a reduction of
regulatory burdens on intrastate pipelines. The Final Rule generally
adopts the regulations proposed in the Notice of Proposed
Rulemaking.\2\ However, the Final Rule revises the Commission's
periodic rate review requirement policy to allow intrastate pipelines
with unchanged state-approved rates to meet the periodic rate review
requirement by certifying that their state-based rates continue to
satisfy the requirements of Sec. 284.123(b)(1) of the Commission's
regulations for using state-based rates. The Final Rule also extends
the deadline for interventions and initial comments to 21 days after
the date of a filing under the optional notice procedures or such other
date established by the Secretary of the Commission. The Commission
clarifies that the optional notice procedures are not available for
market-based rate filings by intrastate pipelines, i.e., seeking
approval for market-based rates pursuant to Sec. 284.503, or Hinshaw
pipelines seeking approval of a blanket certificate and initial rates
pursuant to Sec. 284.224. The Final Rule also makes technical
corrections to the proposed rules.
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\1\ 18 CFR 284.123 (2012).
\2\ Revisions to Procedural Regulations Governing Transportation
by Intrastate Pipelines, 77 FR 66568 (Nov. 6, 2012), FERC Stats. and
Regs. ] 32,695 (2012) (NOPR).
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I. Background
2. Section 284.123 applies to filings by: (1) Intrastate pipelines
providing interstate services pursuant to section 311 of the Natural
Gas Policy Act of 1978 (NGPA) \3\ and (2) Hinshaw \4\ pipelines
providing interstate services subject to the Commission's Natural Gas
Act (NGA) jurisdiction pursuant to blanket certificates issued under
Sec. 284.224 of the Commission's regulations.\5\ NGPA section 311
authorizes the Commission to allow intrastate pipelines to transport
gas ``on behalf of'' interstate pipelines or local distribution
companies served by interstate pipelines ``under such terms and
conditions as the Commission may prescribe.'' \6\ NGPA section
601(a)(2) exempts transportation service authorized under NGPA section
311 from the Commission's NGA jurisdiction. Shortly after the adoption
of the NGPA, the Commission authorized Hinshaw pipelines to apply for
NGA section 7 certificates authorizing them to transport gas in
interstate commerce in the same manner as section 311 pipelines may do
under NGPA section 311.\7\
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\3\ 15 U.S.C. 3372.
\4\ Section 1(c) of the NGA exempts from the Commission's NGA
jurisdiction pipelines which transport gas in interstate commerce if
(1) they receive natural gas at or within the boundary of a state,
(2) all the gas is consumed within that state, and (3) the pipeline
is regulated by a state Commission. This exemption is referred to as
the Hinshaw exemption after the Congressman who introduced the bill
amending the NGA to include section 1(c). See ANR Pipeline Co. v.
Federal Energy Regulatory Comm'n, 71 F.3d 897, 898 (1995) (ANR v.
FERC) (briefly summarizing the history of the Hinshaw exemption).
\5\ 18 CFR 284.224 (2012).
\6\ 15 U.S.C. 3371(c).
\7\ Certain Transportation, Sales and Assignments by Pipeline
Companies not Subject to Commission Jurisdiction Under Section 1(c)
of the Natural Gas Act, Order No. 63, FERC Stats. & Regs. ] 30,118,
at 30,824-825 (1980).
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3. Subpart C of the Commission's Part 284 open access regulations
(18 CFR 284.121-126 (2012)) implements the provisions of NGPA section
311 concerning transportation by intrastate pipelines. NGPA section 311
provides that the rates of intrastate pipelines performing
transportation service under the NGPA shall be fair and equitable.
Section 284.123 of the regulations provides procedures for section 311
and Hinshaw pipelines to establish fair and equitable rates for
interstate services.
4. Section 284.123(b) allows intrastate pipelines an election of
the methodology upon which to base their rates for interstate services.
Section 284.123(b)(1) permits an intrastate pipeline to elect to base
its rates on the methodology used by the appropriate state regulatory
agency (1) to design rates to recover transportation or other relevant
costs included in a then effective firm sales rate for city-gate
service on file with the state agency; or (2) to determine the
allowance permitted by the state agency to be included in a natural gas
distributor's rates for city-gate natural gas service. Section
284.123(b)(1) also permits an intrastate pipeline to use the rates
contained in one of its then effective transportation rate schedules
for intrastate service on file with the appropriate state regulatory
agency which the intrastate pipeline determines covers service
comparable to service under Subpart C of Part 284.
5. If the intrastate pipeline does not make an election under
paragraph (b)(1) of Sec. 284.123, Sec. 284.123(b)(2) requires
[[Page 45852]]
that it ``apply for Commission approval, by order, of the proposed
rates and charges'' pursuant to the procedures in that paragraph.
Section 284.123(b)(2)(i) provides for the pipeline to file a petition
for approval of the proposed rates and charges, as well as information
showing the proposed rates and charges are fair and equitable. Upon
filing the petition for approval, the intrastate pipeline is permitted
to commence the transportation service and charge and collect the
proposed rate, subject to refund. Section 284.123(b)(2)(ii) provides
that the rate proposed in the application will be deemed to be fair and
equitable and not in excess of an amount which interstate pipelines
would be permitted to charge for providing similar transportation
service, unless within the 150-day period after the date on which the
Commission received a filed application, the Commission either extends
the time for action, or institutes a proceeding in which all interested
parties will be afforded an opportunity for written comments and for
the oral presentation of views, data, and arguments. The Commission has
extended this 150-day period when necessary, for example to allow
settlement in contested proceedings or initiate proceedings in complex
cases.
6. Section 284.123(e) requires that, within thirty days of
commencement of a new service, any intrastate pipeline that engages in
transportation arrangements under Subpart C of Part 284 must file with
the Commission a statement that includes the pipeline's interstate
rates, the rate election made pursuant to Sec. 284.123(b) of that
section, and a description of how the pipeline will engage in these
transportation arrangements, including operating conditions, such as
gas quality standards and the creditworthiness of the shipper. This
statement is generally referred to as the pipeline's ``Statement of
Operating Conditions'' (SOC). Section 284.123(e) also requires that, if
the pipeline changes its operations, rates, or rate election, it must
amend the SOC and file such amendments no later than thirty days after
commencement of the change in operations or the change in rate
election.
7. As part of its regulation of section 311 and Hinshaw pipelines,
the Commission has a policy of requiring a review of the rates of both
section 311 and Hinshaw pipelines every five years. While this periodic
rate review requirement is not part of the Commission's regulations,
the Commission has consistently imposed that requirement in its orders
approving each rate filing by an intrastate pipeline. In Order No. 735,
the Commission modified its previous triennial rate review policy in
order to decrease the frequency of review from three to five years from
the date the approved rates took effect.\8\ The Commission imposes this
requirement, both when the intrastate pipeline has chosen to elect a
state-based rate pursuant to Sec. 284.123(b)(1) or has proposed a rate
for a Commission-approved rate pursuant to Sec. 284.123(b)(2).\9\
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\8\ Contract Reporting Requirements of Intrastate Natural Gas
Companies, Order No. 735, 75 Fed. Reg. 29,404 (May 26, 2010), FERC
Stats. & Regs. ] 31,310, at P 96 (2010) (Order No. 735), order on
reh'g, Order No. 735-A, 75 Fed. Reg. 80,685 (Dec. 23, 2010), FERC
Stats. & Regs. ] 31,318 (2010).
\9\ Order No. 735, FERC Stats. & Regs. ] 31,310 at P 92 and
cases cited.
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8. Finally, currently, a request to withdraw a filing must be filed
under the Commission's general Rules of Practice and Procedure.
A. The NOPR
9. On October 18, 2012, the Commission issued the NOPR, in which it
proposed to add a new section 284.123(g) to its regulations to provide
optional notice procedures for processing rate filings by section 311
and Hinshaw pipelines. The Commission proposed that an intrastate
pipeline may elect to use these procedures for approval of a filing
pursuant to Sec. 284.123 of the Commission's regulations. The
Commission proposed that, under this procedure, the intrastate
pipeline's filing would be approved without any order of the
Commission, if the filing is not protested within a specified period
after notice of the filing or if any protests are resolved during a
reconciliation period.
10. Specifically, the optional notice procedure as proposed in the
NOPR would operate as follows: Proposed Sec. 284.123(g)(3) provided
that, within ten days after a filing by an intrastate pipeline pursuant
to the optional notice procedure, the Secretary of the Commission would
issue a notice of the filing, which would be published in the Federal
Register. That notice would provide a deadline for interventions and
initial comments fourteen days after the date of the filing, or such
other date established by the Secretary. It would also provide a
separate deadline for final comments and protests sixty days after the
date of the filing or such other date established by the Secretary. As
proposed, any person or the Commission's staff is permitted to file a
protest prior to the 60-day protest deadline. If no protest is filed
within the time allowed, the filing would be deemed approved without a
Commission order, upon expiration of the time for filing protests,
unless the intrastate pipeline has withdrawn, amended, or modified its
filing or the filing is rejected prior to that date.
11. If a protest is filed, proposed Sec. 284.123(g)(5) allows a
reconciliation period for negotiations in a structured process to
promote settlement of contested cases. Specifically, this section would
permit the intrastate pipeline, the person who filed the protest in
accordance with proposed Sec. 284.123(g)(4), any intervenors, and
staff thirty days from the deadline for protests to the pipeline's
filing to resolve the protest and to convene informal settlement
conferences to assist in resolving the protest. If all protests to the
filing are withdrawn pursuant to proposed paragraph (g)(6) by the end
of the reconciliation period, the filing would be deemed approved.
Alternatively, proposed paragraph (g)(7) permits the pipeline to amend
or modify a tariff record in order to resolve concerns raised in an
initial comment or a protest. Proposed paragraph (g)(7) provides that
such a filing will toll the notice periods established under paragraph
(g)(3) of this section for the original filing, and the Secretary of
the Commission will issue a notice establishing new deadlines for
comments and protests for the entire filing pursuant to paragraph
(g)(3). The intrastate pipeline may request a deadline for protests
less than 60 days after the date of the filing. If there are no
protests to the amendment or modification and any protests to the
entire filing which have been filed are withdrawn, the amended filing
would be deemed approved as of the day after the new deadline for
protests established by the Secretary.
12. If a filing is still contested after the above procedures are
completed, the filing would not be deemed approved and, within sixty
days from the deadline for filing protests, the Commission would
establish procedures to resolve the proceeding. The 150-day period in
existing Sec. 284.123(b)(2)(ii) under which filings are deemed
approved unless the Commission acts within that period does not apply
to filings pursuant to the new notice procedures.
13. The Commission also proposed in Sec. 284.123(g)(9) to apply
the Commission's existing periodic rate review policy to rates approved
under the optional notice procedures. Therefore, proposed Sec.
284.123(g)(9) requires that a NGPA section 311 intrastate pipeline
whose rates are approved under the optional notice procedures file an
application for rate
[[Page 45853]]
approval under Sec. 284.123 on or before the date five years following
the date it filed the application for approval of the rates pursuant to
Sec. 284.123(g). Similarly, a Hinshaw pipeline whose rates are deemed
approved under Sec. 284.123(g) would be required to file either (1)
cost and throughput data sufficient to allow the Commission to
determine whether any change to the pipeline's rates should be ordered
pursuant to section 5 of the Natural Gas Act or (2) a petition for rate
approval pursuant to Sec. 284.123, on or before the date five years
following the date it filed the application for approval of rates
pursuant to Sec. 284.123(g).\10\
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\10\ The courts have held that the Commission cannot require
interstate pipelines subject to its NGA jurisdiction to make new
rate filings under NGA section 4. Public Service Commission of New
York v. FERC, 866 F.2d 487 (D.C. Cir. 1989). Consumers Energy Co. v.
FERC, 226 F.3d 777 (6th Cir. 2000). Because the Commission regulates
interstate services performed by Hinshaw pipelines under the NGA,
the Commission gives them the option of filing a cost and revenue
study every five years, instead of a new petition for rate approval.
Consumers Energy Co., 94 FERC ] 61,287 (2001).
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14. Finally, the Commission proposed in Sec. 284.123(h) to codify
the procedures for section 311 and Hinshaw pipelines to withdraw any
filing under Sec. 284.123 in its entirety prior to its approval,
including filings made under the existing procedures in Sec. 284.123.
Section 284.123(h)(2) would make the pipeline's withdrawal of its
filing effective at the end of 15 days from the date of filing the
withdrawal motion, if no opposition to the motion is filed within that
period and the Commission does not issue an order disallowing the
motion. Proposed Sec. 284.123(h)(1) would require the pipeline to
acknowledge that any amounts collected subject to refund in excess of
the rates authorized by the Commission will be refunded with interest
and a refund report will be filed. The refunds must be made within
sixty days of the date the withdrawal motion becomes effective. A
shipper would have 15 days to respond to the pipeline's filing.
B. Comments
15. Comments on the NOPR were due on December 6, 2012. Thirteen
parties filed comments.\11\ In general, most commenters support the
Commission's efforts to increase regulatory certainty and reduce
regulatory burdens. However, some commenters either oppose the rule or
request that the Commission modify or clarify the proposal. The
comments are discussed below in the context of the relevant aspect of
this Final Rule.
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\11\ Comments were filed by Independent Petroleum Association of
America (IPAA); American Gas Association (AGA); Duke Energy Ohio,
Inc. and Duke Energy Kentucky, Inc. (Duke); The East Ohio Gas
Company d/b/a Dominion East Ohio and Hope Gas Inc. d/b/a Dominion
Hope (Dominion); Texas Pipeline Association (TPA); MGTC Inc. (MGTC);
Enstor Operating Company, LLC (Enstor); Cranberry Pipeline
Corporation (Cranberry); Calpine Corporation (Calpine); Apache
Corporation, BP America Production Company, BP Energy Company, Noble
Energy, Inc., and Occidental Energy Marketing, Inc. (Indicated
Shippers); BG Energy Merchants, LLC and Marathon Oil Company
(Indicated Marketers); Oklahoma Independent Petroleum Association
(OIPA); and Dawn Hearty.
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II. Whether To Adopt Optional Notice Procedures
A. The NOPR
16. In the NOPR, the Commission explained that it had proposed the
new optional notice procedures in an effort to reduce burdens on
regulated entities and provide regulatory certainty. The Commission
stated that this proposal permitting a filing to be deemed approved
without a Commission order under the conditions described above was
part of its commitment to continually review its regulations and
streamline or eliminate requirements that impose an unnecessary burden
on regulated entities. The Commission further stated that it believes
that these notice procedures would provide an expedited and less
burdensome method of processing filings by section 311 and Hinshaw
pipelines which present few, if any, contested issues. The Commission
noted that many of the intrastate pipeline companies filing rates and/
or statements of operating conditions pursuant to Sec. 284.123 are
small and have few interstate shippers. The Commission further noted
that discount rate agreements are common, with the result that the
pipeline often performs most of its interstate services at rates which
are discounted substantially below its maximum rates for such services.
The Commission stated that most Sec. 284.123 filings are not protested
by any shipper and, if protested, those protests often raise issues
which are relatively amenable to settlement.
B. Comments
17. The commenters generally support adoption of the optional
notice procedures, although several request clarifications or
modifications to the regulations proposed in the NOPR. Generally, the
commenters supporting the proposal, including AGA, MGTC, TPA, Dominion,
Duke, Calpine, and Cranberry, support the proposal due to the expedited
and less burdensome procedure which they believe will benefit
intrastate pipelines. TPA states that it is a more rapid process than
the existing procedures and will achieve certainty earlier at a reduced
cost to the pipeline, shippers and the Commission. Dominion asserts
that the proposal will expedite the regulatory filing and approval
process in uncontested cases while at the same time ensuring that any
contested matter receives full consideration and review by the
Commission before a final determination is made.
18. However, Indicated Shippers, Indicated Marketers, and OIPA
oppose the adoption of the proposed optional notice procedures.
Indicated Shippers, Indicated Marketers, and OIPA argue that the
proposed optional notice procedures improperly reduce or eliminate the
Commission's statutory responsibilities and the independent staff
review that is required for filings pursuant to Sec. 284.123 of the
Commission's regulations. Indicated Shippers argues that the proposed
rule would, in fact, impermissibly permit automatic implementation of
rates.
19. Indicated Marketers contends that, while the volume of protests
may be small, this likely results from the section 311 market structure
and the shippers' difficulty accessing capacity on large section 311
intrastate pipelines. Indicated Marketers argues\12\ that the increase
of large section 311 intrastate pipelines requires more oversight,
especially with the increasing supply of shale gas.\13\
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\12\ Indicated Marketers at 9-13.
\13\ Indicated Marketers cites the Notice of Inquiry (NOI)
proceeding in Docket No. RM11-1-000, Capacity Transfers on
Intrastate Natural Gas Pipelines, FERC Stats. & Regs. ] 35,567
(2010) (cross-referenced at 133 FERC ] 61,065 (2010)), which
requested comments on whether and how holders of firm capacity on
intrastate pipelines should be permitted to allow others to make use
of their firm interstate capacity.
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20. Indicated Marketers and OIPA argue that the proposed regulation
shifts the burden of proof to shippers. Indicated Marketers contends
that this proposal: (1) Lacks any provision for parties to conduct
discovery; (2) fails to consider the fact that a shipper's commercial
concerns may prevent it from filing a protest; and (3) fails to protect
prospective shippers. Finally, Indicated Marketers argues that the
Commission's expectation that all matters can be resolved through
negotiations is unreasonable. Indicated Marketers contends that the
changes to terms and conditions of service of intrastate pipelines (1)
may be less likely to be resolved and involve policy issues or
operational changes that require the Commission resolution and (2) may
be implemented immediately and are not required to be filed until
[[Page 45854]]
thirty days after the commencement of service.\14\
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\14\ (Citing 18 CFR 284.123(e) (2012)).
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21. OIPA argues that the optional notice procedures together with
lengthening of the periodic rate review to 5 years seem to be tilting
the playing field in favor of intrastate pipelines.
22. While AGA supports adoption of the optional notice procedures,
it requests that the Commission clarify that those procedures will not
apply to rate filings seeking authorization to charge market-based
rates.
C. Commission Determination
23. The Commission finds that the optional notice procedures, as
modified herein, will provide an expedited and less burdensome method
of processing the significant percentage of filings by section 311 and
Hinshaw pipelines which present few, if any, contested issues. This
will reduce burdens on section 311 and Hinshaw pipelines, particularly
those performing relatively little interstate service, and their
customers. It will also allow the Commission to devote more resources
to cases where significant issues are raised.
24. The Commission rejects commenters' assertions that these
procedural revisions would reduce or eliminate staff review of the
subject filings or violate the Commission's statutory and regulatory
obligations to ensure fair and equitable rates, terms and conditions of
service. Contrary to the arguments of the commenters regarding the
proposed opportunity to review and protest filings and asserted changes
in the characteristics of intrastate pipelines and the natural gas
markets, the Commission finds that nothing in the proposed rule, as
modified herein, reduces the necessary review by the Commission or the
opportunity for participation by shippers.\15\ Staff will continue to
thoroughly review intrastate pipeline filings under the revised
procedures in the same manner as it reviews such filings under the
existing procedures. Section 284.123(g)(4)(i) permits the Commission's
staff to file a protest to an optional notice filing, even if no party
files a protest.\16\ In addition, there will be a full opportunity for
interested parties to participate in filings pursuant to Sec.
284.123(g). In fact, in some respects, shippers will have a greater
ability to participate and contest the intrastate pipeline's filing.
Section 284.123(g)(3), as revised below, gives shippers 21 days to
submit initial comments and a 60-day period for final protests. The
optional notice procedures approved in the Final Rule, including the
30-day reconciliation period after final protests are filed, provides a
framework to resolve contested issues by agreement between the parties
in an expeditious manner. If, however, a shipper continues to contest a
filing after the reconciliation period, Sec. 284.123(g)(8) provides
that the filing will not be deemed approved, and instead the Commission
will establish additional procedures to consider the contested issues.
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\15\ OIPA argues that while, as the NOPR recognizes (citing
NOPR, FERC Stats. & Regs. ] 32,695 at P 9) that discount rates from
the maximum rate are common for the intrastate pipelines, those
discounts are charged to the cost-of-service in many instances and,
therefore, maximum rate customers pay a higher maximum rate.
However, the Commission's statement was made in the context of its
discussion of the lack of contested issues in and protests to
filings pursuant to section 284.123. Further, in any case, the
approval without a Commission order under the optional notice
procedure is limited to uncontested filings and, therefore,
customers paying the maximum rate may protest a filing and prevent
such approval.
\16\ Indicated Marketers argues that there is little precedent
for the ability of Commission staff to protest set forth in section
284.123(g)(4)(i). However, the Commission staff's use of protests in
blanket certificate proceedings pursuant to a similar provision in
section 157.205(e) of the prior notice procedures provides a
precedent. The Commission believes that the ability of Commission
staff to protest filings will be used to effectively assist the
Commission in implementing its responsibilities under section 311.
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25. Indicated Shippers argues that the proposed rule would
impermissibly permit ``automatic'' implementation of rates\17\ through
light-handed regulation,\18\ including permitting market-based rates
without the required finding of a lack of market power. Similarly,
Indicated Marketers\19\ and OIPA argue that the burden of proof has
been shifted to shippers. They assert that the proposed rules lack
discovery procedures and ignore the fact a shipper's commercial
concerns may prevent it from filing a protest. They further assert that
the proposed rules also ignore prospective shippers.
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\17\ Indicated Shippers contends that the Commission must
``provide a reasonable justification for excluding'' an intrastate
pipeline from a requirement that binds interstate pipelines and that
the proposed rules would set a bad regulatory precedent. Indicated
Shippers at 3, quoting ANR v. FERC, 71 F.3d 897, 902. The quoted
language is directed to the Commission's failure provide a
reasonable justification for rejection of objections by an
intervenor in that case. However, the proposed optional notice
procedure provides a full opportunity to present any objections by
the intervenors or Commission staff and for appropriate resolution
of any contested issues by the Commission.
\18\ Indicated Shippers asserts that the proposed rules
unnecessarily minimize regulatory oversight in conflict with the
Commission's goal of fostering a national pipeline grid and the
appropriate implementation of section 311 (citing EPGT Texas
Pipeline, L.P., 99 FERC ] 61,295, at 62,252 (2002)). However, as
explained in this order, the proposed rules do not minimize the
Commission's regulatory oversight and this assertion is rejected as
unsupported.
\19\ Indicated Marketers objects to the Commission's statement
the proposed optional notice procedures would reduce regulatory
burden similar to the prior notice procedures for interstate
pipelines set forth in section 157.205 since it implies those
procedures are applicable to the section 284.123 filings covered by
these rules. However, the Commission's statement did not concern the
applicability of the prior notice procedures to these section
284.123 filings. The Commission was referring to its belief
regarding the similar result of these procedures in reducing
regulatory burdens. NOPR, FERC Stats. & Regs. ] 32,695 at P 10.
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26. The Commission disagrees. The proposed rules only eliminate the
need for a Commission order in the limited circumstance where filings
are unopposed. This does not lessen, in any manner, the requirements
for approval of filings pursuant to Sec. 284.123, and the pipeline
will continue to have the burden of proof to support its proposed
rates, terms and conditions. As described above, parties will continue
to have a full opportunity to protest a Sec. 284.123 filing. With
regard to discovery procedures, the existing rules do not permit
parties to conduct discovery, unless a case is set for hearing before
an Administrative Law Judge. However, the Commission staff does issue
data requests to obtain needed information,\20\ and nothing in the
proposed procedures would prevent the staff from continuing to issue
such data requests, as needed.
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\20\ See, e.g., Peoples Gas Light and Coke Co., 118 FERC ]
61,203 (2007); Crosstex LIG, LLC, 129 FERC ] 61,284 (2009).
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27. Further, as provided in Sec. 284.123(g)(1), the optional
notice procedures are applicable only to filings seeking approval of
rates, a statement of operating conditions, and any amendments thereto,
pursuant to Sec. 284.123. The Commission's regulations require that
intrastate pipelines seeking approval for market-based rates must do so
pursuant to Sec. 284.503, and Hinshaw pipelines seeking approval of a
blanket certificate and initial rates must do so pursuant to Sec.
284.224. Therefore, the Commission clarifies the optional notice
procedures are not available for market-based rate filings by
intrastate pipelines or for blanket certificate applications by Hinshaw
pipelines.
28. Finally, Indicated Marketers argue that Commission's
expectation that all matters may be resolved through negotiation is
unreasonable.\21\ Indicated Marketers assert that terms and conditions
of service may be less likely to be resolved than rates and may include
policy issues which require resolution by the Commission. Indicated
[[Page 45855]]
Marketers further asserts that there is lack of protection for shippers
because Sec. 284.123(e) of the Commission's regulations does not
require intrastate pipelines to file changes to an SOC until 30 days
after commencement of the change.
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\21\ Indicated Marketers at 16-17.
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29. The Commission does not believe that all contested issues under
the proposed rules will be resolved through negotiations. While Sec.
284.123(g)(5) designates a new structured 30-day reconciliation period
after the deadline for filing protests to improve the opportunity to
resolve any remaining contested issues, the Commission is required
after the end of that period to establish procedures to resolve the
proceeding when a contested filing has not been resolved within 60 days
of the deadline for filing protests. The new procedures do not put the
shipper at a greater disadvantage than the current procedures or reduce
staff or Commission involvement and, in fact, they increase the
opportunity for participation by both shippers and staff and to resolve
contested issues in a new procedural framework. The Commission believes
that specifying a thirty-day period reconciliation period will promote
settlement of contested issues and increase the opportunity for the
parties and the Commission staff to participate in the settlement
process.
III. Time Periods Allowed To Intervene and Protest in a Sec.
284.123(g) Proceeding
A. The NOPR
30. The proposed procedures provide deadlines of fourteen days for
interventions and initial comments, and sixty days for final comments
and protests from the date of the filing of a pipeline's proposed rate
or operating conditions or such other date established by the Secretary
of the Commission.
B. Comments
31. OIPA contends that the fourteen-day deadline for filing
interventions and initial comments is too short in light of the ten-day
period allowed for the Secretary to issue notice of a filing using the
optional notice procedures. OIPA contends that it is extraordinarily
difficult to discover and appropriately respond to an applicable rate
filing within the four-day period between the ten-day period allowed to
issue notices and the fourteen-day deadline for interventions and
initial comments. As a result, OIPA contends, there will likely be more
protests than the Commission anticipates.
32. TPA, on the other hand, argues that the sixty-day deadline for
final comments and protests is too long. It contends that the NOPR's
sixty-day deadline for protests results in a protest period
substantially longer than the fourteen-day period the Commission
currently allows for protests to filings by intrastate pipelines. TPA
states that the Commission provides no explanation why such an extended
protest period is warranted under the new optional notice procedures.
Although an extended period may be intended to allow additional time
for resolution before the filing of a final protest, TPA is concerned
that the process will result in a short protest within the proposed
fourteen-day deadline for initial comments and a lengthy final protest
at the sixty-day deadline. TPA asserts this aspect of the proposed
procedures conflicts with the Commission's efforts to expedite
regulatory certainty.
33. TPA contends that a shorter protest period than the proposed
sixty-day protest period will help the Commission achieve its goals of
increasing regulatory certainty and reducing the regulatory burden. TPA
further contends that protests in substantially more complex interstate
rate and tariff cases are due within twelve days of the filing and that
there is no reason why simpler filings cannot be analyzed in the same
time period. TPA prefers a single fourteen-day protest period,
consistent with the existing practice of allowing fourteen days for any
interventions or protests, and it asserts this would allow for a longer
reconciliation period that can be used to achieve resolution. However,
if the existing time period is lengthened, TPA believes that a single
intervention or a protest period of thirty days to be a reasonable
balance under the circumstances.
34. TPA argues that the proposed protest period with its two
opportunities to protest will cause unnecessary delay and, therefore,
should be consolidated into a single shorter period. TPA asserts that
the Commission should consolidate these protest periods into a single
period. TPA further asserts that a bifurcated protest period is
unnecessary and has the potential to needlessly complicate the process.
TPA further asserts that it is not aware of any other Commission
regulation that allows a party two opportunities to protest, including
the prior notice process under the existing blanket certificate
regulations. TPA contends that a single shorter period would allow the
reconciliation period to be increased, thus creating more time for the
parties to resolve their differences which is more productive and
ultimately will foster a more efficient administrative process.
35. TPA also argues that to expedite the rate approval process, the
Commission should revise the NOPR to allow pipelines the opportunity to
request a shorter notice period if a protest has been resolved within
the reconciliation period as a result of the pipeline's agreement to
modify or amend the proposed rate filing.
36. TPA contends that Sec. 284.123(g)(7) requires the Secretary of
the Commission to establish new deadlines for comments and protests
pursuant to paragraph (g)(3) when a filing has been amended or
modified, but without making any distinction as to the basis for the
proposed amendment or modification. TPA, therefore, suggests that if
the rate filing has been amended or modified to resolve a protest,
pipelines should be allowed to petition the Secretary for a shorter
notice period under paragraph (g)(3) and additional language should be
included in paragraph (g)(7) to afford the pipelines the flexibility to
request a new shortened comment period.
C. Commission Determination
37. The Commission rejects TPA's request to shorten the proposed
60-day deadline for final protests, and therefore Sec. 284.123(g)(3)
adopts the NOPR proposal to provide a 60-day deadline for final
comments and protests to a filing under the optional notice procedures
or such other date established by the Secretary of the Commission.
However, in response to OIPA's comments regarding the time period
allowed for interventions and initial comments, the Commission will
revise the deadline for interventions and initial comments in Sec.
284.123(g)(3) to allow a longer time period of 21 days for
interventions and initial comments, or such other date established by
the Secretary.
38. Consistent with the NOPR, Sec. 284.123(g)(3), as adopted in
this Final Rule, permits the Secretary a period of up to ten days in
order to issue a notice of a filing under the optional notice
procedures in the Federal Register. The Commission is permitting a
period of up to ten days for noticing the filing, because Sec.
284.123(g)(2) requires the Director of the Office of Energy Market
Regulation to reject, within seven days of the date of filing, a filing
which patently fails to comply with the requirements of Sec.
284.123(e) or (f) without prejudice to the pipeline refiling a complete
filing. Those two paragraphs describe the information intrastate
pipelines must include in their filings and the electronic filing
[[Page 45856]]
requirements. As explained in the NOPR, immediate rejection of filings
for failure to comply with these requirements should help streamline
the processing of rate and other filings by intrastate pipelines by
ensuring that filings must be complete before they are processed. The
ten-day period for noticing a filing allows staff time to make an
initial review of a filing to ensure that it complies with the
Sec. Sec. 284.123(e) and (f) filing requirements before it is noticed.
However, the Commission recognizes that the ten-day period for the
Secretary to notice the filing in conjunction with a 14-day deadline
for filing interventions and initial comments could leave insufficient
time for an interested party to determine whether it has concerns with
a filing. Extending the deadline for interventions and initial comments
to 21 days should address this concern.
39. The Commission finds that TPA's concerns about the 60-day
period for filing final comments and protests are misplaced. TPA's
assertions characterizing the proposed procedures as providing two
deadlines for filing protests are mistaken. While a protest may be
filed at any time during the period allowed for protests to the filing,
there is only one sixty-day deadline for filing protests. The initial
period allows intervenors to file initial comments to express their
concerns about a filing without filing a formal protest. As TPA
recognizes, the Commission proposed the sixty-day period before final
protests are due in order to provide an opportunity for the applicant
and potential protestors to resolve concerns raised in initial comments
and any other questions prior to the protest deadline and thereby avoid
the filing of any protest.\22\ That would avoid the need for a
reconciliation period after the deadline for filing protests and thus
help expedite approval of the pipeline's filing. As explained in the
NOPR, the Commission continues to believe that Sec. 284.123(g),
including the 60-day period before final protests are due, will create
an improved framework in which to achieve settlement of contested
cases.\23\ Further, a longer time period allowed to protest a filing is
appropriate in view of the approval of filings which are not protested
in the proposed rules.
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\22\ TPA at 6.
\23\ NOPR, FERC Stats. & Regs. ] 32,695 at P 10.
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40. If an intrastate pipeline amends its filing in order to resolve
concerns raised either in an initial comment or a final protest,
paragraph (g)(7) requires the Secretary of the Commission to establish
new deadlines for comments and protests pursuant to paragraph (g)(3),
and paragraph (g)(3) allows the Secretary to provide for different
deadlines than the deadlines ordinarily provided for in that section.
Therefore, the intrastate pipeline or intervenors may petition the
Secretary of the Commission pursuant to paragraph (g)(3) to allow a
shorter time period for the filing of comments and protest on
amendments to tariff records agreed to by the parties in order to
resolve concerns raised in initial comments or a final protest.
Accordingly, TPA's request for revision of paragraph (g)(7) to
expressly permit such shorter deadlines is unnecessary.
IV. Procedures for Resolving Contested Cases
A. The NOPR
41. If a protest is not resolved within the thirty-day
reconciliation period after the deadline for filing final protests, the
pipeline's filing is not deemed approved under the optional notice
procedures, and the Commission must issue an order resolving the
contested issues with respect to the pipeline's filing. Section
284.123(g)(5) accordingly provides that, if a protest is not withdrawn
or dismissed by the end of the reconciliation period, the Commission
will ``establish procedures to resolve the proceeding'' within sixty
days from the deadline to file protests.
B. Comments
42. TPA argues that proposed Sec. 284.123(g)(5) may unnecessarily
delay the rate application process and that to streamline the
resolution of protests, the Commission should include a specific
procedural method to resolve the protests and encourages the Commission
to use the staff panel procedures allowed by Sec. 284.123(b)(2)(ii) of
the Commission's regulations.\24\ Under that procedure, the Director of
the Office of Energy Market Regulation designates a three-member staff
panel to conduct an informal advisory proceeding in which all
interested parties are afforded an opportunity to submit written
comments and to make an oral presentation of views, data and arguments.
The Commission then issues an order on the pipeline's filing based on
the record developed in the staff panel proceeding.
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\24\ Section 284.123(b)(2)(ii) allows the Commission to
institute ``a proceeding in which all interested parties will be
afforded an opportunity for written comments and for oral
presentation of views, data and arguments.'' The Commission has
generally done this through the staff panel procedures described
above. However, section 284.123(b)(2)(ii) does not expressly refer
to, or require, those procedures.
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43. TPA asserts that a staff panel procedure is familiar and
affords parties an adequate opportunity to present oral views, data and
arguments before Commission staff. TPA further contends that the staff
panel procedures will increase regulatory certainty and allow
elimination of the sixty-day period referred to in proposed Sec.
284.123(g)(5).
C. Commission Determination
44. The Commission denies TPA's request to revise the proposed
procedures to require the use of a staff panel process in cases where
the pipeline's filing is not deemed approved under the prior notice
procedures. The Commission believes that the proposed ability to
determine the method of resolution of the contested issues based on the
unique circumstances of each case will allow resolution of the cases in
the most appropriate and expeditious manner. With respect to TPA's
request to require that staff panel procedures be used in every case
where the pipeline's filing is not deemed approved without an order,
the Commission believes that use of these procedures may not be the
most appropriate procedure to resolve every case. In some cases, it may
be possible to resolve contested issues based solely on written
pleadings without the need for any oral presentation of views, data,
and argument as permitted under staff panel proceedings. In addition,
while the Commission does not ordinarily establish formal evidentiary
hearings before an Administration Law Judge in intrastate pipeline
cases, the Commission has in rare cases determined that such a hearing,
including the opportunity for the parties to conduct discovery, is
necessary.\25\ Therefore, requiring initiation of a staff panel in any
given case may not necessarily be the best method to expeditiously
resolve the contested issues and the Commission will not by rule
restrict its ability to determine the most appropriate procedures for
resolution of contested cases in each case based on the particular
circumstances of that case.
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\25\ Consumers Power Co., 120 FERC ] 61,252 (2007).
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V. Ex Parte Rules
A. The NOPR
45. In the NOPR, the Commission stated that once a proceeding filed
pursuant to section 284.123(g) is contested, the Commission's ex parte
[[Page 45857]]
rules governing off-the-record communications \26\ will be applicable.
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\26\ 18 CFR 385.2201 (2012).
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B. Comments
46. TPA contends that the Commission must modify the application of
its ex parte rules in the Reconciliation Period to ensure that the
ability to settle cases is not impaired. TPA requests that, in the
Reconciliation Period, the ex parte rules would not be applicable to
any communication made as part of a bona fide effort to resolve the
protest, subject to two limitations. First, notice of the fact of the
communication, but not its contents, would be required to be provided
to other parties within two business days. TPA asserts that this
limitation would allow the staff to continue to serve its role in
facilitating settlements and discuss issues raised only by staff
without running afoul of the spirit of the ex parte rules. Second, if a
staff panel is established, the Commission would make clear in the
order designating the staff panel members that hence forth they are
decisional employees and the ex parte rules apply from that date to
those individuals. TPA asserts that such modifications will not
undermine the appropriate purpose of the ex parte rules. TPA states
that it is open to other methods of facilitating the settlement
process, and its goal is to avoid having the ex parte rules serve as an
impediment to settlement.
C. Commission Determination
47. The Commission believes that TPA's request to modify the
Commission's ex parte rules to limit their application during the
processing of cases under the optional notice procedures conflicts both
with the appropriate application and the purpose of those rules and,
therefore the request is denied. The ex parte rules are designed to
ensure ``the integrity and fairness of the Commission's decisional
process'' \27\ and apply whenever a case is contested. The ex parte
rules have two primary purposes: (1) A hearing is not fair when one
party has private access to the decision maker and can present evidence
or argument that other parties have no opportunity to rebut; and (2)
reliance on ``secret'' evidence may foreclose meaningful judicial
review.\28\ TPA's requested modification would conflict with these
purposes. While TPA asserts that application of the ex parte rules
could impede settlement, as the Commission pointed out in Order No.
607, the ex parte rules as clarified were not intended to reduce
communications and, in fact, should improve the meaningful dialogue
that is necessary for fair and informed decision making.\29\ In fact,
the ex parte rules are currently being applied in section 311
proceedings utilizing methods such as Commission staff data requests
and conferences to provide communication to promote settlement
resulting in resolution of the vast majority of contested issues.
Therefore, TPA's request to modify the Commission's ex parte rules for
the proposed proceedings where the proposed Reconciliation Period is
applicable is denied as unsupported.\30\
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\27\ 18 CFR 385.2201(a) (2012).
\28\ Regulations Governing Off-the-Record Communications, 63 FR
51312 (Sept. 25, 1998), FERC Stats. and Regs. ] 32,534, at 33,501
(1998).
\29\ Regulations Governing Off-the-Record Communications, Order
No. 607, 64 FR 51222 (Sept. 22, 1999) FERC Stats. & Regs. ] 31,079,
at 30,880 (1999) (Order No. 607), order on reh'g, Order No. 607-A,
65 FR 71247 (Nov. 30, 2000), FERC Stats. & Regs. ] 31,112 (2000).
\30\ As TPA notes, under the ex parte rules, the Commission may
modify the rules for a proceeding to the extent permitted by law.
However, TPA's request to modify the ex parte rules at this time for
every optional notice proceeding is denied as speculative and
unsupported.
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VI. Market-Based Rates Which Must Be Revised to Cost-Based Rates
A. Comments
48. TPA argues that intrastate pipelines subject to market-based
rates should be allowed to file under the optional notice procedures if
the Commission subsequently determines the market-based rates for a
service are no longer applicable after notice is given by the pipeline
to the Commission of a significant change in market power status
pursuant to Sec. 284.504(b) of the Commission's regulations. TPA
contends that, if the Commission determines that the change in market
power requires a cost-based rate to be set, the Commission should allow
the company to utilize any of the options available under the
Commission's regulations, including the optional notice procedures. TPA
asserts that, given the existing reporting requirements applicable to
entities with market-based rates, there is no need for any additional
filing requirements.
B. Commission Determination
49. When an intrastate pipeline must file for approval of cost-
based rates for a service for which market-based rates were authorized,
under the circumstances described by TPA, the intrastate pipeline may
file pursuant to paragraph (g) if it solely files for that approval
pursuant to Sec. 284.123. However, the intrastate pipeline may be
required to make such filing in conjunction with other provisions of
the Commission's regulations, i.e., pursuant to the requirements of
Sec. Sec. 284.503 and 284.504 related to its other services which are
market-based. Under such circumstances, as explained above, optional
notice procedures are limited to filings seeking approval pursuant to
Sec. 284.123 and would not be available for such filings.
VII. Periodic Rate Review
A. The NOPR
50. The NOPR proposed to include a five-year periodic rate review
requirement in the optional notice procedures consistent with the
Commission's policy of including such a requirement in each order
approving a rate filing by a section 311 or Hinshaw pipeline.
Accordingly, the proposed regulations included a requirement that a
NGPA section 311 intrastate pipeline whose rates are deemed approved
under the optional notice procedures file an application for rate
approval under Sec. 284.123 on or before the date five years following
the date it filed the application for approval pursuant to the optional
notice procedures. Similarly, a Hinshaw pipeline would be required to
file either (1) cost and throughput data sufficient to allow the
Commission to determine whether any change to the pipeline's rates
should be ordered pursuant to section 5 of the Natural Gas Act; or (2)
a petition for rate approval pursuant to Sec. 284.123, on or before
the date five years following the date it made the optional notice
procedures filing.
51. As described above, under Sec. 284.123(b), intrastate
pipelines are afforded two basic methods to establish fair and
equitable rates for section 311 service: (1) Using a rate based on, or
on file with, the pipeline's state commission, as provided for under
Sec. 284.123(b)(1); or (2) by applying to the Commission to set the
rates by order, as provided for under Sec. 284.123(b)(2). The
Commission's regulations define an appropriate state regulatory agency
as one that sets ``rates and charges on a cost-of-service basis.'' The
Commission has applied its five-year periodic rate review requirement
on all section 311 and Hinshaw pipeline rates, regardless of which of
the two basic rate approval methods were used.
B. Comments
52. TPA argues that if a pipeline is using state-approved rates
pursuant to Sec. 284.123(b)(1) and those rates have not changed during
the five-year period, the Commission should only require confirmation
that the pipeline's underlying state-approved rates remain
[[Page 45858]]
valid and allow these state-approved rates to qualify under the
proposed optional notice procedures. TPA also requests that the
Commission utilize this certification process even if an applicant does
not use the proposed optional notice procedures. TPA requests that, in
the case of a pipeline that wishes to continue to use its established,
unchanged section 311 rates based on its state-approved rates, the
Commission should only require confirmation that the pipeline's
underlying state approved rates have not changed by adding the phrase
``or a certification that a rate set under (b)(1) remains valid,'' to
new paragraph (g)(9). TPA further requests that the Commission revise
its periodic rate review policy for all such unchanged section 311
state-approved rates even if an applicant does not use the proposed
optional notice procedures.
53. TPA also contends that the five-year period should be measured
from the time the rate is approved, either by final Commission order or
operation of law. TPA asserts that, in a contested case, the finally
approved rate may be in effect for a significantly shorter period than
five years and shippers are protected by the refund requirement of
Sec. 284.123(b)(2)(ii), but that any settlement that requires a
refiling requirement five years from the date of the original filing
does not provide the pipeline with five years of rate certainty.
54. TPA further argues that the satisfaction of the periodic review
requirement by a cost and revenue study should not be limited to
Hinshaw pipelines but also be applicable to all section 311 pipelines
if no rate change is proposed. TPA asserts that section 311 rates are
often deeply discounted and, in order to avoid needless rate change
applications, pipelines with a rates established by the Commission that
do not propose a rate change should be allowed the option to file a
cost and revenue study. TPA further asserts that if the pipeline
demonstrates that the costs of providing section 311 service exceed the
revenues from that service that should end the matter. TPA contends
that there is no reason not to allow the same cost and revenue study in
lieu of a rate case for all the other section 311 entities. TPA further
contends that the Commission has approved of interstate pipeline rate
case settlements that require a cost and revenue study and that, after
a cost and revenue study is noticed, if protested, the same procedures
in the NOPR can be followed.
55. Several other parties request clarification of the periodic
rate review requirement. MGTC requests that the Commission clarify that
the optional notice procedures under paragraph (g) may be used to meet
the periodic rate review requirement. AGA requests that the Commission
clarify that the approval of operating conditions or terms and
conditions of service without changing rates will not be subject to the
periodic rate review requirement. Finally, Enstor seeks clarification
that the periodic rate review requirement in paragraph (g)(9) will not
be applicable to market-based rates.
C. Commission Determination
56. The Commission is modifying its periodic rate review policy
with respect to rates based on those approved by the appropriate state
regulatory agency for a comparable service consistent with Sec.
284.123(b)(1) to permit section 311 and Hinshaw pipelines using state-
based rates to certify that those rates continue to meet the
requirements of Sec. 284.123(b)(1), rather than filing a new rate
petition or cost and revenue study. Paragraph (g)(9) of Sec. 284.123,
as adopted by the Final Rule, reflects this revised policy. This change
further reduces the regulatory burden on intrastate pipelines.
57. The Commission finds that this change in its periodic rate
review policy is consistent with our overall policy of permitting
intrastate pipelines to base their rates on cost-based rates approved
by their state regulatory agency. When an intrastate pipeline elects to
use a state-approved rate, the Commission's examination of these Sec.
284.123(b)(1) rate elections is limited to whether the rate meets the
requirements of that section. Section 284.123(b)(1) permits an
intrastate pipeline to elect to base its rates on the methodology used
by the appropriate state regulatory agency (1) to design rates to
recover transportation or other relevant costs included in a then
effective firm sales rate for city-gate service on file with the state
agency; or (2) to determine the allowance permitted by the state agency
to be included in a natural gas distributor's rates for city-gate
natural gas service. Section 284.123(b)(1) also permits an intrastate
pipeline to use the rates contained in one of its then effective
transportation rate schedules for intrastate service on file with the
appropriate state regulatory agency which the intrastate pipeline
determines covers service comparable to service under Subpart C of Part
284.
58. The Commission's analysis of whether the intrastate pipeline's
state rate election under Sec. 284.123(b)(1) satisfies these
requirements focuses on whether the state rate or rate methodology
elected by the pipeline is for the appropriate city-gate service or a
transportation service comparable to the interstate serviced to be
provided by the intrastate pipeline. The Commission does not look
behind the state regulatory agency's cost and revenue findings to
determine whether they are reasonably supported. Rather, as part of the
Commission's regulation of intrastate pipelines performing interstate
service, the Commission defers to the cost and revenue factual findings
of the state regulatory agency. By contrast, when the intrastate
pipeline files a petition for rate approval under Sec. 284.123(b)(2),
the Commission makes its own cost and revenue findings, based on data
filed by the pipeline.
59. Nevertheless, under the Commission's current five-year periodic
rate review policy, section 311 and Hinshaw pipelines are required to
make the same application for rate approval or cost and revenue study
after five years, regardless of what rate election they have
chosen.\31\ Currently, section 311 and Hinshaw pipelines using state-
based rates typically meet the periodic review requirement by making a
new filing with the state commission, and then filing the new rate
approved by that commission with this Commission. Thus, our current
periodic rate review policy has the effect of requiring the state
regulatory agencies whose rates are used for interstate service to
conduct new rate cases for the pipeline's intrastate services every
five years. The Commission finds that it will be more consistent with
our overall policy, in the context of Sec. 284.123(b)(1) rate
elections, of deferring to the cost and revenue determinations of state
regulatory agencies to allow the state regulatory agencies to determine
when rates need to be updated to reflect changes in costs and revenues.
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\31\ Order No. 735, FERC Stats. & Regs. ] 31,310 at P 92.
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60. Therefore, the Commission will revise its current policy for
all section 311 and Hinshaw pipelines with state-approved rates which
have not changed since the previous five-year filing to allow these
intrastate pipelines to make a filing pursuant to the optional notice
procedures in paragraph (g) certifying that those rates continue to
meet the requirements of Sec. 284.123(b)(1) on the same basis on which
they were approved. However, the Commission will require that, if the
state-approved rate used for the election is changed at any time, the
section 311 or Hinshaw pipeline must file a new rate election pursuant
to Sec. 284.123(b) for its interstate rates not later than 30 days
after the changed rate becomes effective. This
[[Page 45859]]
will ensure that the state-based rates used for interstate services
reflect the state regulatory agency's most current cost and revenue
findings. Accordingly, this Final Rule includes this revised policy as
part of the optional notice procedures in the added paragraphs
(g)(9)(ii) and (g)(9)(iii). Certification filings will receive the same
notice procedures as any other paragraph (g) filing.
61. The Commission denies TPA's request that the ability to meet
the periodic rate review requirement through a cost and revenue study
should be applicable to all section 311 pipelines if no rate change is
proposed. As the Commission explained above,\32\ the Commission gives
Hinshaw pipelines the option of filing a cost and revenue study every
five years, instead of a new petition for rate approval, because the
courts have held that the Commission cannot require interstate
pipelines subject to its NGA jurisdiction to make new rate filings
under NGA section 4. However, the Commission has held that its
conditioning authority under NGPA section 311(c) permits it to
condition approval of rates under section 311 on a periodic rate
refilling requirement.\33\ Therefore, TPA's request that this option
required by a statutory limitation be available to all section 311
pipelines is denied as unsupported.
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\32\ See n.10 of this order.
\33\ See GulfTerra Texas Pipeline, L.P., 109 FERC ] 61,350, at P
10 (2004).
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62. TPA's request that the five-year periodic rate review
requirement be revised to commence on the date that the rate is
approved is also denied. Requiring periodic review rate filings with
the Commission is the means by which the Commission can be assured that
intrastate and Hinshaw pipeline rates approved by the Commission remain
fair and equitable for interstate transportation. The Commission
believes that the five-year period established in Order No. 735
measured from the date of the pipeline's request is an appropriate
period to allow before requiring a review of the rates in order to
determine if the information and data upon which the Commission based
its approval of the pipeline's rate has become stale. Regardless of how
soon after the intrastate pipeline's rate filing the Commission issues
its order approving the rate, the Commission's rate determination will
be based on data from the period before the pipeline made its rate
filing. Therefore, granting TPA's request to measure the five-year
period from the date the rates are ultimately approved could result in
rates remaining in effect for a period significantly longer than the
five-year period without an updating of cost and revenue data. Use of
the date of the request results in regulatory certainty for intrastate
pipelines that the requested rates may be proposed to be effective on
the filing date and, if approved, the full five-year period will be
available.
63. The Commission clarifies, as requested by MGTC, that intrastate
pipelines may file for approval of rates or to certify state rates
under Sec. 284.123(g) pursuant to the optional notice procedures under
paragraph (g) to meet the periodic rate review requirements in
paragraph (g)(9). The proposed rules are revised to include the
clarifying language ``under this section'' after the words ``either
file'' in the second sentence of Sec. 284.123(g)(9)(i). As requested
by AGA, the Commission also clarifies that filings pursuant to this
paragraph (g) for approval of operating conditions or terms and
conditions of service without changing rates are not subject to the
periodic rate review requirement in paragraph (g)(9).
64. Finally, as discussed above, the optional notice procedures do
not apply to requests for approval of market-based rates. Therefore, as
Enstor requests, the Commission clarifies that the periodic rate review
requirement in paragraph (g)(9) is not applicable to market-based
rates. This is consistent with the Commission's existing policy of not
extending its periodic rate review requirement to intrastate pipelines
with market-based rates.\34\
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\34\ See, e.g., Louisville Gas and Electric Co., 99 FERC ]
62,040 (2002).
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VIII. Miscellaneous
A. Section 284.123(g)(8)
1. The NOPR
65. Proposed Sec. 284.123(g)(8)(i) states that a filing is
approved ``effective on the day after time expires'' for filing a
protest unless, among other things, the filing is rejected. Similarly,
proposed Sec. 284.123(g)(8)(ii) states that if a protest is withdrawn,
the filing is approved ``effective upon'' the day after the withdrawal
unless, among other things, the filing is rejected.
2. Comments
66. TPA argues that the word ``effective'' in those sections
creates an ambiguity since transportation under 18 CFR 284.121 may
commence without prior Commission approval. TPA asserts that, if no
protest is filed, or one is withdrawn, the filing should be deemed
effective on the date proposed by the pipeline. TPA contends that the
Commission can correct this problem by deleting the word ``effective''
from proposed paragraphs (g)(8)(i) and (g)(8)(ii) and adding the
following at the end of each paragraph: ``rates approved under this
subparagraph are effective as of the date specified in the filing for
approval.''
67. Dominion requests clarification of the proviso in paragraphs
(g)(8)(i) and (g)(8)(ii) that the filing is approved after the listed
conditions are met, ``unless the intrastate pipeline withdraws, amends,
or modifies its filing or the filing is rejected.'' (Emphasis
supplied.) Specifically, Dominion requests clarification that the
reference to rejection of the filing is limited to the initial 7-day
rejection period only. Dominion requests that the Commission so
clarify, by revising the last clause in paragraphs (g)(8)(i) and
(g)(8)(ii) to read ``or the filing is rejected pursuant to paragraph
(g)(2).''
3. Commission Determination
68. The Commission agrees that revisions to paragraphs (g)(8)(i)
and (g)(8)(ii) regarding approval of the filing are appropriate to
recognize that the rates may be collected subject to refund prior to
Commission approval and to resolve any ambiguity with respect to the
effectiveness of the approved rates. The Commission also clarifies the
reference in these paragraphs to rejection of the filing.
69. Accordingly, the Commission removes the language following the
word ``effective'' and substitutes the following language at the end of
each paragraph: ``on the date proposed in the filing requesting
approval unless the intrastate pipeline withdraws, amends, or modifies
its filing or the filing is rejected pursuant to paragraph (g)(2) of
this section.''
B. Section 284.123(g)(4)
1. The NOPR
70. Proposed paragraph (g)(4) states that, in addition to the
Commission's staff, ``any person'' may file a protest prior to the 60-
day protest deadline.
2. Comments
71. Dominion believes that it would be problematic and conflict
with the goals of certainty and streamlined processing, if an entity
could fail to intervene timely but have the rights of a protester.
Therefore, the Dominion suggests that the phrase ``any person'' in
proposed paragraph (g)(4) be revised to read ``Any intervenor or the
Commission's staff.''
[[Page 45860]]
3. Commission Determination
72. The Commission rejects Dominion's request to revise paragraph
(g)(4) of the proposed rule. Section 385.211(a)(1) of the Commission's
Rules of Practice and Procedure, in part, allows ``any person'' to file
a protest to any application or tariff or rate filing.\35\ Further,
consistent with that provision, Sec. 157.205(e)(1) allows ``any
person'' or the Commission staff to file a protest in the existing
certificate prior notice procedures.\36\ Therefore, Dominion has not
presented a sufficient basis to grant its request to limit the ability
to file a protest under these proposed procedures.
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\35\ 18 CFR 385.211(a)(1) (2012).
\36\ 18 CFR 205(e)(1) (2012).
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C. Clarifications
73. Paragraph (g)(1) is revised to remove the language after the
word ``procedures'' in the second sentence which states ``on the first
page of '' and replace it with the words ``in the.'' This revision is
necessary to reflect the electronic filing requirements in Sec.
284.123(f) which are applicable to all filings pursuant to Sec.
284.123. The phrase ``of this chapter'' is added to paragraph (g)(6)
after the reference to Sec. 385.216 and paragraph (g)(9)(i) after the
reference to Sec. 154.313. Paragraph (g)(5) is revised to add the word
``Commission'' before the word ``staff.'' Finally, Sec. 385.211(b)(1)
of the Commission's regulations currently requires any protests which
are filed to be served on the person against whom they are directed.
Therefore, paragraph (g)(4)(i) is revised to remove as unnecessary the
second sentence which required protests to filings pursuant to the
optional notice procedures to be served on the Secretary of the
Commission and the intrastate pipeline.
IX. Information Collection Statement
A. The NOPR
74. In the NOPR, in accordance with the requirements of the Office
of Management and Budget (OMB), the Commission estimated that the
average annual public reporting burden imposed on the section 311 and
Hinshaw intrastate pipelines of making filings for rate approval under
Sec. 284.123 would not change. The preparation effort or the substance
of a filing made pursuant to Sec. 284.123(g) would be the same as for
a filing made pursuant to existing Sec. Sec. 284.123(b) and/or
284.123(e). A requirement of a pipeline using the new optional filing
procedures is that the pipeline make a new rate approval filing under
Sec. 284.123 within five years of the date of the initial filing.
Since the Commission has, as a matter of policy, routinely imposed that
requirement on the section 311 industry in the context of individual
rate cases, the Commission does not consider this a change in the
burden being imposed.
75. The Commission as a part of this Final Rule is changing its
policy with respect to five-year periodic rate review requirement for
pipelines whose rates are based upon a state rate election under Sec.
284.123(b)(1). The Commission will only require a pipeline with state-
approved rates which have not changed since the previous five-year
filing to certify that those rates continue to meet the requirements of
Sec. 284.123(b)(1) on the same basis on which they were approved.
Concomitant with this policy change, the Commission will now require a
pipeline with rates that are based upon a state rate election under
Sec. 284.123(b)(1) to file within thirty days of a change in its
underlying state rates for approval of new rates under Sec. 284.123.
The pipeline may not wait to do this in conjunction with a filing under
its five-year periodic rate review requirement. The Commission has
observed that generally most pipelines file to revise rates based upon
a state rate election whenever there is a change. The Commission
estimates that this change in policy may result in three additional
filings on an annual basis.
76. As noted in the NOPR, the Commission estimates that a single
pipeline may, on an annual basis, use the new withdrawal filing
requirements under Sec. 284.123(h). This may result in an increase in
burden of 12 hours per year for the new withdrawal filing requirements.
B. Comments
77. None of the parties commented on the burden estimates.
C. Commission Determination
78. The Commission has reviewed the burdens imposed by this
rulemaking. The Commission's review finds that the proposed changes
will not affect the burden on section 311 intrastate and Hinshaw
pipelines of making an initial filing seeking approval of proposed
rates or operating conditions pursuant to Sec. 284.123. The
preparation effort or the substance of a filing made pursuant to Sec.
284.123(g) would be the same as for a filing made pursuant to existing
Sec. Sec. 284.123(b) and/or 284.123(e).
79. The Commission believes the change in policy to require a
pipeline with rates that are based upon a state rate election to file
for new rates within thirty days of a change in its underlying state
rates would add only minimal burden to any intrastate pipeline.
80. The Commission believes the change in policy requiring
pipelines new withdrawal procedure for filings made prior to their
approval would add only minimal burden to any intrastate pipeline
making a withdrawal filing.
81. The proposed changes will primarily affect the post-filing
process and cost. The changes will reduce overall cost and delay for
stakeholders; however that post-filing burden is beyond the scope of
requirements of the Paperwork Reduction Act. The new optional
procedures will provide both intrastate pipelines and their shippers
greater regulatory certainty and a simpler process without any change
in the upfront burden of preparing and making a filing.
82. The Commission's revised burden estimate is shown below. The
revision to the table included in the NOPR includes three additional
rate filings that would result from the policy change requiring
pipelines to update rates using a state rate election whenever there is
a change.
----------------------------------------------------------------------------------------------------------------
Burden hours per
Number of respondent per Total annual
FERC-549 (OMB Control No. 1902-0086) respondents year (1 filing/ burden hours
year)
(a) (b) (a x b)
----------------------------------------------------------------------------------------------------------------
Existing Inventory:
----------------------------------------------------------------------------------------------------------------
Rates and Charges for Intrastate Pipelines (18 CFR 67 12 804
284.123(b) and (e))...................................
----------------------------------------------------------------------------------------------------------------
[[Page 45861]]
Final Rule in RM12-17-000:
----------------------------------------------------------------------------------------------------------------
Rates and Charges for Intrastate Pipelines (18 CFR 70 12 840
284.123(b), (e) and (g))..............................
----------------------------------------------------------------------------------------------------------------
Withdrawal of Filing prior to Approval (18 CFR 1 12 12
284.123(h))...........................................
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FERC-549 Total..................................... 71 12 854
----------------------------------------------------------------------------------------------------------------
X. Environmental Analysis
83. The Commission is required to prepare an Environmental
Assessment or an Environmental Impact Statement for any action that may
have a significant adverse effect on the human environment.\37\ The
Commission has categorically excluded certain actions from these
requirements as not having a significant effect on the human
environment.\38\ The actions proposed to be taken here fall within
categorical exclusions in the Commission's regulations for rules that
are corrective, clarifying or procedural, for information gathering,
analysis, and dissemination, and for sales, exchange, and
transportation of natural gas that requires no construction of
facilities.\39\ Therefore an environmental review is unnecessary and
has not been prepared in this rulemaking.
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\37\ Regulations Implementing the National Environmental Policy
Act of 1969, Order No. 486, 52 FR 47897 (Dec. 17, 1987), FERC Stats.
& Regs., Regulations Preambles 1986-1990 ] 30,783 (1987).
\38\ 18 CFR 380.4 (2012).
\39\ See 18 CFR 380.4(a)(2)(ii), 380.4(a)(5), and 380.4(a)(27)
(2012).
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XI. Regulatory Flexibility Act
84. The Regulatory Flexibility Act of 1980 (RFA) \40\ generally
requires a description and analysis of final rules that will have
significant economic impact on a substantial number of small entities.
The Commission is not required to make such an analysis if proposed
regulations would not have such an effect.\41\ Most companies regulated
by the Commission do not fall within the RFA's definition of a small
entity.\42\
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\40\ 5 U.S.C. 601-612 (2006).
\41\ 5 U.S.C. 605(b) (2006).
\42\ 5 U.S.C. 601(3) (citing section 3 of the Small Business
Act, 15 U.S.C. 623 (2006)). Section 3 defines a ``small-business
concern'' as a business which is independently owned and operated
and which is not dominant in its field of operation.
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85. This Final Rule should have no significant negative impact on
those entities, be they large or small, subject to the Commission's
regulatory jurisdiction under the NGA. Most companies to which the
Final Rule applies do not fall within the RFA's definition of small
entities. In addition, the Commission has identified two small entities
as respondents to the requirements in the NOPR.\43\ As explained above,
the Commission estimates that the proposed Sec. 284.123(g) regulations
will serve as a substitute for filings currently done pursuant to
Sec. Sec. 284.123(b) and (e), and Sec. 284.123(h) provides regulatory
certainty if a pipeline decides to withdraw its filing. The Commission
estimates that intrastate pipelines will experience little if any
change in regulatory burden associated with making their filings, and
pipelines will be able to avoid certain costs and delays post-filing
due to the new streamlined process. Accordingly, the Commission
certifies that this rule will not have a significant impact on a
substantial number of small entities and no regulatory flexibility
analysis is required.
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\43\ The U.S. Small Business Administration's (SBA) Table of
Small Business Size Standards is found in 13 CFR 121.201. SBA's
updated version of the size standards (effective March 26, 2012, and
available at http://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf) defines a natural gas pipeline (contained in
Subsector 486, Pipeline Transportation) as ``small'' when it has
average annual receipts of $25,500,000 or less.
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XII. Document Availability
86. In addition to publishing the full text of this document in the
Federal Register, the Commission provides all interested persons an
opportunity to view and/or print the contents of this document via the
Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's
Public Reference Room during normal business hours (8:30 a.m. to 5:00
p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC
20426.
87. From FERC's Home Page on the Internet, this information is
available on eLibrary. The full text of this document is available on
eLibrary in PDF and Microsoft Word format for viewing, printing, and/or
downloading. To access this document in eLibrary, type the docket
number excluding the last three digits of this document in the docket
number field.
88. User assistance is available for eLibrary and the FERC's Web
site during normal business hours from FERC Online Support at 202-502-
6652 (toll free at 1-866-208-3676) or email at
ferconlinesupport@ferc.gov, or the Public Reference Room at (202) 502-
8371, TTY (202) 502-8659. Email the Public Reference Room at
public.referenceroom@ferc.gov.
XIII. Effective Date and Congressional Notification
89. The Commission did not propose a specific implementation
schedule in the NOPR. The Commission will implement the new optional
filing procedures 30 days from the date of OMB's approval of this Final
Rule. The Secretary of the Commission will issue a revised list of Type
of Filing Codes \44\ to pipelines for filings made pursuant to
paragraph (g) and withdrawals made pursuant to paragraph (h).
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\44\ See 18 CFR 375.302(z) (2012). The Implementation Guide
describes the Type of Filing contents. The Type of Filing Code list
is posted on the Commission's Web site at http://www.ferc.gov/docs-filing/etariff/filing_type.csv.
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90. The Commission has determined, with the concurrence of the
Administrator of the Office of Information and Regulatory Affairs of
OMB, that this rule is not a ``major rule'' as defined in section 351
of the Small Business Regulatory Enforcement Fairness Act of 1996.
List of Subjects in 18 CFR Part 284
Natural gas, Reporting and recordkeeping requirement.
By the Commission.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
In consideration of the foregoing, the Commission amends part 284,
Chapter I, Title 18, Code of Federal Regulations, as follows:
[[Page 45862]]
PART 284--CERTAIN SALES AND TRANSPORTATION OF NATURAL GAS UNDER THE
NATURAL GAS POLICY ACT OF 1978 AND RELATED AUTHORITIES
0
1. The authority citation for part 284 continues to read as follows:
Authority: 15 U.S.C. 717-717z, 3301-3432; 42 U.S.C. 7101-7352;
43 U.S.C. 1331-1356.
0
2. Section 284.123 is amended by adding paragraphs (g) and (h) to read
as follows:
Sec. 284.123 Rates and charges.
* * * * *
(g) Election of Notice Procedures. (1) Applicability. An intrastate
pipeline filing for approval of rates, a statement of operating
conditions, and any amendments or modifications thereto pursuant to
this section may use the notice procedures in this paragraph. Any
intrastate pipeline electing to use these notice procedures for a
filing must clearly state its election to use these procedures in the
filing. Such filing is approved and the rates deemed fair and equitable
and not in excess of the amount that an interstate pipeline would be
permitted to charge for similar transportation service if the
requirements in paragraph (g)(8) of this section have been fulfilled.
(2) Rejection of filing. The Director of the Office of Energy
Market Regulation or his designee shall reject within 7 days of the
date of filing a request which patently fails to comply with the
provisions of paragraph (e) or (f) of this section, without prejudice
to the intrastate pipeline refiling a complete application. If such
filing was required by this section, that filing must be refiled within
14 days of the date of the rejection.
(3) Publication of notice of filing. The Secretary of the
Commission shall issue a notice of the filing within 10 days of the
date of the filing, which will then be published in the Federal
Register. The notice shall designate a deadline for filing
interventions, initial comments, final comments, and protests to the
filing. The deadline for interventions and initial comments shall be 21
days after the date of the filing or such other date established by the
Secretary of the Commission. The deadline for final comments and
protests shall be 60 days after the date of the filing or such other
date established by the Secretary of the Commission.
(4) Protests. (i) Any person or the Commission's staff may file a
protest prior to the deadline for protests.
(ii) Protests shall be filed with the Commission in the form
required by Part 385 of this chapter including a detailed statement of
the protestor's interest in the filing and the specific reasons and
rationale for the objection and whether the protestor seeks to be an
intervenor.
(5) Effect of protest. If a protest is filed in accordance with
paragraph (g)(4) of this section, then the intrastate pipeline, the
person who filed the protest, any intervenors and Commission staff
shall have 30 days from the deadline for filing protests established by
the Secretary of the Commission in accordance with paragraph (g)(3) of
this section, to resolve the protest, and to file a withdrawal of the
protest pursuant to paragraph (g)(6) of this section. Informal
settlement conferences may be convened by the Director of the Office of
Energy Market Regulation or his designee during this 30 day period. If
a protest is not withdrawn or dismissed by end of that 30 day period,
the filing shall not be deemed approved pursuant to this paragraph.
Within 60 days from the deadline for filing protests established by the
Secretary of the Commission in accordance with paragraph (g)(3) of this
section the Commission will establish procedures to resolve the
proceeding.
(6) Withdrawal of protests. The protestor may withdraw a protest by
submitting written notice of withdrawal to the Secretary of the
Commission pursuant to Sec. 385.216 of this chapter and serving a copy
on the intrastate pipeline, any intervenors, and any person who has
filed a motion to intervene in the proceeding.
(7) Amendments or modifications to tariff records prior to
approval. An intrastate pipeline may file to amend or modify a tariff
record contained in the initial filing pursuant to the procedures under
this paragraph (g) which has not yet been approved pursuant to
paragraph (g)(8) of this section. Such filing will toll the notice
period established in paragraph (g)(3) of this section and the
Secretary of the Commission will issue a notice establishing new
deadlines for comments and protests for the entire filing pursuant to
paragraph (g)(3).
(8) Final approval. (i) If no protest is filed within the time
allowed by the Secretary of the Commission under paragraph (g)(3) of
this section, the filing by the intrastate pipeline is approved,
effective on the date proposed in the filing requesting approval unless
the intrastate pipeline withdraws, amends, or modifies its filing or
the filing is rejected pursuant to paragraph (g)(2) of this section.
(ii) If any protest is filed within the time allowed by the
Secretary of the Commission under paragraph (g)(3) of this section and
is subsequently withdrawn before the end of the 30-day reconciliation
period provided by paragraph (g)(5) of this section, the filing by the
intrastate pipeline is approved effective on the date proposed in the
filing requesting approval unless the intrastate pipeline withdraws,
amends, or modifies its filing or the filing is rejected pursuant to
paragraph (g)(2) of this section.
(9) Periodic rate review. Rates of pipelines approved by the
Commission pursuant to this paragraph are required to be periodically
reviewed.
(i) Any intrastate pipeline with rates so approved must file an
application for rate approval under this section on or before the date
five years following the date it filed the application for
authorization of rates pursuant to this paragraph. Any Hinshaw pipeline
that has been a granted a blanket certificate under Sec. 284.224 of
this chapter and with rates approved pursuant to this paragraph must on
or before the date five years following the date it filed the
application for authorization of the rates pursuant to this paragraph
either file under this section cost, throughput, revenue and other
data, in the form specified in Sec. 154.313 of this chapter, to allow
the Commission to determine whether any change in rates is required
pursuant to section 5 of the Natural Gas Act or an application for rate
authorization pursuant to this section.
(ii) An intrastate pipeline with rates approved pursuant to the
rate election in paragraph (b)(1) of this section that remain unchanged
during the five-year review period which were approved based on then
effective state rates may file a certification with the Commission
pursuant to this paragraph (g) that the rates continue to comply on the
same basis with the requirements set forth in paragraph (b)(1) of this
section. Such certification of rates will meet the periodic rate review
requirement set forth in this paragraph (g)(9) unless the Commission
determines that further proceedings concerning the rates are
appropriate.
(iii) If the state rate used pursuant to paragraph (b)(1) of this
section for approval of a rate pursuant to this paragraph (g) is
changed, not later than 30 days after that changed rate becomes
effective, the intrastate pipeline must file a new rate election
pursuant to paragraph (b) of this section.
(10) Withdrawal of filing prior to approval. A pipeline may,
pursuant to paragraph (h) of this section, withdraw in its entirety a
filing made pursuant to paragraph (g) that has not been approved by
filing a withdrawal motion with the Commission. A filing that is
[[Page 45863]]
withdrawn will not fulfill the requirements under paragraph (g)(8) of
this section.
(h) Withdrawal of filing. A pipeline may withdraw in its entirety a
filing pursuant to this section that has not been approved by filing a
withdrawal motion with the Commission.
(1) The withdrawal motion must state that any amounts collected
subject to refund in excess of the rates authorized the Commission will
be refunded with interest calculated and a refund report filed with the
Commission in accordance with Sec. 154.501 of this chapter. The
refunds must be made within 60 days of the date the withdrawal motion
becomes effective.
(2) The withdrawal motion will become effective, and the filing
will be deemed withdrawn at the end of 15 days from the date of filing
of the withdrawal motion, if no order disallowing the motion is issued
within that period. If an answer in opposition is filed within the 15-
day period, the withdrawal is not effective until an order accepting
the withdrawal is issued.
[FR Doc. 2013-17822 Filed 7-29-13; 8:45 am]
BILLING CODE 6717-01-P